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Will Judge Matsch Postpone McVeigh Execution?

Aired June 2, 2001 - 09:22   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CAROL LIN, CNN ANCHOR: The decision whether Timothy McVeigh lives or dies may come down to one man: Federal Judge Richard Matsch. He is intensely focused, a no-nonsense jurist who presided over the Oklahoma City bombing trial. The pressure is intense in this politically charged case now. McVeigh's lawyers are now arguing that thousands of FBI documents may hold evidence that would have helped their client.

Craig Silverman is a criminal defense attorney in Denver. He was chief deputy district attorney in Denver for 16 years and has argued cases before Judge Matsch.

Good morning.

CRAIG SILVERMAN, CRIMINAL DEFENSE ATTORNEY: Good morning.

LIN: Well, very quickly, before I tap your personal experience with Judge Matsch, very quickly tell me, exactly what happens on Monday? The federal government, the Justice Department, has until Monday to respond to McVeigh's attorneys ask for another stay.

SILVERMAN: It's pretty clear that the government is going to argue this on procedural basis. They're going to say it doesn't matter, all these new documents, because what the defense has to show on this successor habeas corpus petition is actual innocence. They've already taken one bite at the apple. New federal guidelines make clear that if they're going to have any shot to get him off death row, they have to demonstrate actual innocence, which is pretty much impossible in the case of Timothy McVeigh.

LIN: And they have to demonstrate it with a judge who is pretty straight ahead. You've had some personal experience with Judge Matsch in the courtroom. How is he likely the political pressure, the emotional pressure coming out of Oklahoma City in terms of what he does in issuing another stay?

SILVERMAN: He's pretty impervious to political pressure. He's 70 years old. He was appointed a long time ago by Richard Nixon. One of the most controversial cases he's handled was the Denver school busing case, which, for the better part of two decades, rocked this city. A lot of people were unhappy because he, in effect, took control of busing, and, despite public opinion, he held to his guns for quite a long time. LIN: But this is a case where clearly all sides are screaming to be heard. And it reminds me a lot of the dynamic during the O.J. Simpson criminal trial. How does the style in terms of how a jurist handled -- Judge Ito -- handled that case versus how Judge Matsch is likely to handle this very high-profile situation?

SILVERMAN: We are talking polar opposites, Judge Ito versus Judge Matsch. Judge Matsch is very well prepared. He doesn't entertain journalists back in chambers. He is always on time and he expects the attorneys to be well prepared.

He will not be that happy with the federal government, who promised him several times that they had turned over all the documents. I was surprised to hear Sean Connelly say the other day that "We provided a lot more than the law requires." Well, that may be true in the general case, but Judge Matsch had signed an order requiring the prosecution, the government, to turn over everything, and now it appears that they did not.

LIN: So he is very literal, he is very much about the letter of the law. I want to read back to you something that one of his former law clerks once said. He said that Judge Matsch "is a stickler for promptness, and that is really about having an orderly process that is predictable. He says that is the best process for uncovering the truth," according to Judge Matsch.

So given that philosophy, how is he likely -- does that make him more likely to issue a stay, that every precaution should be taken, every document should be looked over?

SILVERMAN: The smart money is that he will issue a stay. The defense really isn't saying that they have the goods to stop this execution permanently. They're just saying, Hey, look, we've got 4,000 new pages. We have a bunch of new CDs with audio and visual on it. It's only fair that you give us an opportunity to investigate it.

And I think his decision was presaged on Friday when he told the federal government, "Do not interfere with the defense investigation here, or there will be consequences."

LIN: Does Judge Matsch have the legal authority to overturn or change McVeigh's death sentence?

SILVERMAN: I think he would. He would first have to conduct an evidentiary hearing. If he were to say that there was a deliberate fraud on the court, such that any judgment rendered is meaningless, he could do that. Now, I don't think he will do that, because the bottom line still remains, did Tim McVeigh commit this mass murder? And the evidence remains overwhelming that he did, whether or not other people were involved.

LIN: Not to mention his confession to two book authors, although that confession was not made in court, so we shall see.

SILVERMAN: Right.

LIN: Thank you very much, Craig Silverman, for joining us.

SILVERMAN: Thank you.

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